# Canton v. Attorney General, United States of America

> District Court, M.D. Florida · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10642587

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

PAUL JOHN CANTON,

Canton,

v. Case No: 6:23-cv-1190-EJK

ATTORNEY GENERAL, UNITED
STATES OF AMERICA,
SECRETARY OF HOMELAND
SECURITY, ACTING DIRECTOR
OF U.S. CITIZENSHIP AND
IMMIGRATION SERVICES,
FIELD OFFICE DIRECTOR OF
U.S CITIZENSHIP AND
IMMIGRATION SERVICES,
ORLANDO, and UNITED STATES
CITIZENSHIP AND
IMMIGRATION SERVICES,

Defendants.

ORDER
This cause comes before the Court on Defendants’ Motion to Dismiss (the
“Motion”), filed September 29, 2023. (Doc. 39.) On October 10, 2023, Plaintiff filed a
Response in opposition to the Motion. (Doc. 43.) Upon consideration, the Motion is
due to be granted in part and denied in part.
I. BACKGROUND
The parties do not dispute the relevant factual allegations. Paul John Canton is
a noncitizen United States Marine Corps veteran. (Doc. 38 ¶ 3.) Canton has never
been a Lawful Permanent Resident (“LPR”). Instead, he came to the United States on
an exchange visitor (J) visa. (Id. ¶¶ 14, 18.) He was born in New Zealand, which does
not grant birthright citizenship.1 (Id. ¶ 14.) Prior to his military service, Canton was a

citizen of Australia. (Id.) However, his Australian citizenship was revoked after his
service in a foreign military. (Id.) Despite overstaying his J visa and not being a LPR
or a United States citizen, Canton was recruited into and enlisted in the Marines on
March 29, 1991, through the Delayed Entry Program (“DEP”).2 (Id. ¶ 18.) Canton
delayed entry until November 11, 1991, his active service date. (Id. ¶ 5.) Canton

believed himself to be a United States citizen as a result of his military service,
recruiters’ promises, and his honorable discharge. (Id. ¶ 4.) However, Canton learned
on June 12, 2019, that he was, in fact, not a United States citizen. (Id. ¶ 5.)

1 Although Plaintiff represents that New Zealand does not have birthright citizenship,
a review of New Zealand law shows that at the time Plaintiff was born, New Zealand
did in fact have birthright citizenship. See N.Z. Citizenship Act 1977(6)(1)(a) (amended
Apr. 21, 2005) (“A person is a New Zealand citizen by birth if—the person was born
in New Zealand on or after 1 January 1949 and before 1 January 2006; or the person
was born in New Zealand on or after 1 January 2006, and, at the time of the person’s
birth, at least one of the person’s parents was—a New Zealand citizen; or entitled in
terms of the Immigration Act 2009 to be in New Zealand indefinitely, or entitled to
reside indefinitely in the Cook Islands, Niue, or Tokelau.”). Since Plaintiff was born
August 5, 1971, he had birthright citizenship in New Zealand. (Doc. 1-2 at 26.)
2 According to the Marine Corps website, “the DEP grants you the opportunity to
postpone recruit training for 365 days[.]” See Marines,
https://www.marines.com/become-a-marine/process-to-join/delayed-entry-
program.html. (last visited July 25, 2024).
With this discovery, Canton applied for naturalization under Section 329 of the
Immigration and Nationality Act (“INA § 329”), 8 U.S.C. § 1440. (Id.) The INA §
329(a) provides in pertinent part that:

[a]ny person who, while an alien or a noncitizen national of
the United States, has served honorably as a member of the
Selected Reserve of the Ready Reserve or in an active-duty
status in the military, air, or naval forces of the United
States . . . during any [] period which the President by
Executive order shall designate as a period in which Armed
Forces of the United States are or were engaged in military
operations involving armed conflict with a hostile foreign
force, and who, if separated from such service, was
separated under honorable conditions, may be naturalized
as provided in this section if (1) at the time of enlistment,
reenlistment, extension of enlistment, or induction such
person shall have been in the United States, the Canal Zone,
American Samoa, or Swains Island, or on board a public
vessel owned or operated by the United States for
noncommercial service, whether or not he has been lawfully
admitted to the United States for permanent residence, or
(2) at any time subsequent to enlistment or induction such
person shall have been lawfully admitted to the United
States for permanent residence.

8 U.S.C. § 1440(a).
The Persian Gulf Conflict was designated by Executive Order to have existed
from August 2, 1990, to April 11, 1991. Exec. Order 12939, 59 Fed. Reg. 61231 (Nov.
22, 1994). After an administrative appeal, the United States Citizenship and
Immigration Services (“USCIS”) denied Canton’s Form N-400, Application for
Naturalization. (Doc. 38 ¶ 5.) After obtaining pro bono counsel, Canton filed a second
N-400, which USCIS also denied after an administrative appeal. (Id. ¶¶ 5–6.) USCIS
denied Canton’s naturalization because, although he enlisted during the designated
period of hostilities for the Persian Gulf Conflict, he did not serve in active duty until
after the designated period, making him ineligible for Section 1440 naturalization. (Id.
¶ 7.) Even if he had been considered active duty during a period of hostility—which

USCIS found he was not—USCIS also found that Canton did not demonstrate good
moral character for a year prior to filing his application, which is a requirement in
addition to the active-duty service requirement, because he registered to vote claiming
to be a United States citizen and voted in several elections within a year prior to filing
his application, in violation of federal law. (Docs. 1-2 at 64–65; 38 ¶ 22.) This fact also

precluded Canton from adjusting his status and seeking naturalization through his
United States citizen spouse. (Doc. 38 ¶ 22.)
Plaintiff filed his original Complaint on June 27, 2023. (Doc. 1.) With
Defendants’ consent, Plaintiff filed an Amended Complaint on September 15, 2023.

(Doc. 38.) Canton brings the following three claims against Defendants: Count I
requests that the Court issue a writ of mandamus to compel USCIS to adjudicate
Canton’s naturalization application pursuant to 28 U.S.C. § 1361. (Id. ¶¶ 19–22.)
Count II requests that the Court set aside USCIS’s denial of Canton’s naturalization
applications, pursuant to the Administrative Procedures Act (the “APA”), 5 U.S.C. §
706(2), because it is not in accord with INA § 329 or USCIS Policy Memo PA-2021-

24. (Id. ¶¶ 23–25.) Finally, in Count III, Plaintiff requests the Court review de novo
Canton’s denied naturalization application pursuant to the INA, 8 U.S.C. § 1421(c).
(Id. ¶¶ 23–25.)
II. STANDARD
A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction dictated by Congress and
constrained by Article III of the Constitution. Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 409 (11th Cir. 1999). Subject-matter jurisdiction is generally “an antecedent
question” that must be resolved before consideration of the merits. Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 101 (1998). Without it, a district court lacks the power

to hear a case and it must be plead at the outset. See Am. Tobacco Co., 168 F.3d at 409.
A facial attack on the complaint requires the court to accept the allegations in the
complaint as true and determine whether those allegations sufficiently alleged a basis
for subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990). Conversely, a factual attack challenges the existence of subject matter

jurisdiction in fact, irrespective of the pleadings. Id. Here, Defendants assert a facial
challenge to Plaintiff’s Mandamus and APA claims. (Doc. 39 at 12–14.)
B. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a
“short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (internal quotation marks omitted)
(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions, and formulaic recitations of the
elements of a cause of action are not sufficient. Id. at 678 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 55 (2007)). Furthermore, mere naked assertions are not
sufficient. Id. A complaint must contain sufficient factual matter, which if accepted as
true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citation omitted). However, the Court need not
accept as true a legal conclusion stated as a “factual allegation” in the complaint. Id.
“[T]he power to make someone a citizen of the United States has not been conferred
upon the federal court, like mandamus or injunction, as one of their generally

applicable equitable powers.” INS v. Pangilinan, 486 U.S. 875, 883–84 (1988). Thus,
an applicant for naturalization bears the burden of proving that they satisfy all the
statutory requirements for citizenship. Id. at 886. Any doubts concerning an
applicant’s statutory eligibility for naturalization are resolved in favor of the United
States and against the applicant. Molsen v. Young, 182 F.2d 480, 482 (5th Cir. 1950),

vacated on other grounds, 340 U.S. 880 (1950) (citing United States v. Manzi, 276 U.S. 463,
467 (1928)).3
III. DISCUSSION
A. The Mandamus Act (Count I)
Under the Mandamus Act, “district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.

3 The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (en banc).
A writ of mandamus is an extraordinary remedy available only in the clearest and most
compelling of cases. Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 392
(2004); Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003). The Act is intended to

provide plaintiffs relief only after they have exhausted all other avenues of relief and
only if the defendant owes them a clear nondiscretionary duty. Heckler v. Ringer, 466
U.S. 602, 616 (1984). Thus, the Eleventh Circuit has held that a district court may
exercise jurisdiction over a mandamus action if: 1) the plaintiff has a clear right to the

relief requested; 2) the defendant has a clear duty to act; and 3) no other adequate
remedy is available. Serrano v. United States AG, 655 F.3d 1260, 1263 (11th Cir. 2011)
(citing Cash, 327 F.3d at 1258.) Lastly, the party seeking a writ of mandamus has the
burden of showing that their right to issuance of the writ is “clear and indisputable.”
Carpenter v. Mohawk Indus. Inc., 541 F.3d 1048, 1055 (11th Cir. 2008).

In this case, Defendants argue that Plaintiff fails to establish this Court has
subject matter jurisdiction to issue a writ of mandamus because the INA, 8 U.S.C. §
1421(c), provides an adequate and exclusive remedy for review of the denial of
Plaintiff’s naturalization application. (Doc. 39 at 13.) Section 1421(c) states:
A person whose application for naturalization under this
subchapter is denied, after a hearing before an immigration
officer under section 1447(a) of this title, may seek review
of such denial before the United States district court for the
district in which such person resides in accordance with
chapter 7 of title 5. Such review shall be de novo, and the
court shall make its own findings of fact and conclusions of
law and shall, at the request of the petitioner, conduct a
hearing de novo on the application.
8 U.S.C. § 1421(c). Plaintiff concedes that the INA provides an adequate remedy of
judicial review but argues that the Court should issue a writ of mandamus because it
will compel USCIS to “fulfill its nondiscretionary duties, promptly, providing a swifter

and more efficient remedy.” (Doc. 43 at 6.) The Court rejects Plaintiff’s argument for
two reasons. First, the Court agrees with both parties that section 1421(c) of the INA
provides an adequate remedy for review of the denial of Plaintiff’s naturalization
applications. Serrano, 655 F.3d at 1263. Second, the Court agrees with Defendants that
Plaintiff’s Amended Complaint does not identify any remaining nondiscretionary duty

owed by USCIS that the Court could compel, because the agency has fully adjudicated
both of Plaintiff’s naturalization applications. (Doc. 38 ¶¶ 19–22.) For these reasons,
Plaintiff has failed to establish that the Court has subject matter jurisdiction to issue a
writ of mandamus. Accordingly, Count I is due to be dismissed.

B. The Administrative Procedures Act (Count II)

The APA does not independently confer subject-matter jurisdiction: “28 U.S.C.
§ 1331 confers jurisdiction on federal judges to review agency action under federal-
question jurisdiction.” Perez v. USCIS, 774 F.3d 960 (11th Cir. 2014) (citing Califano v.
Sanders, 430 U.S. 99, 105–07 (1977)). Under the APA, a reviewing court may compel
agency action unlawfully withheld, and it may set aside agency actions, findings, and
conclusions found to be not in accordance with the law. 5 U.S.C. § 706(1)–(2)(A).
Defendants, citing a string of cases from this District in support, argue that
Plaintiff fails to establish that this Court has subject matter jurisdiction to review
USCIS’s denial of Plaintiff’s naturalization applications under the APA. They argue
that courts in this Circuit have dismissed APA claims when plaintiffs simultaneously
seek relief under section 1421(c) because section 1421(c) review precludes APA
review. (Doc. 39 at 12.) Plaintiff, with no cases cited in support, argues that his APA

claim should survive because he raises issues that go beyond the mere denial of
naturalization. (Doc. 43 at 6.) Plaintiff generally contends that he has alleged
procedural irregularities, violation of his due process rights, or other actions that will
not be fully addressed through the narrow lens of section 1421(c). (Id.) The Court
agrees with Defendant.

The Eleventh Circuit has held that section 1421(c) gives plaintiffs like Canton
an adequate remedy because it allows de novo review of USCIS’s denial of a
naturalization application after they exhaust their administrative remedies. Heslop v.
Att’y Gen. of U.S., 594 F. App’x 580, 584 (11th Cir. 2014). Pursuant to this holding,

courts in this District have recognized this same limitation in dismissing APA claims
challenging naturalization decisions when plaintiffs simultaneously seek section
1421(c) relief. See Sidibe v. Cissna, No. 3:19-CV-1129-BJD-JBT, 2021 WL 9408890, at
*2 (M.D. Fla. Jan. 22, 2021) (“Because the INA provides judicial review of a denial of
an application for naturalization, an APA claim seeking similar relief must be

dismissed.”); Liaquat v. Att’y Gen. of United States, No. 6:18-CV-2116-RBD-LRH, 2019
WL 5399566, at *2 (M.D. Fla. Oct. 4, 2019), report and recommendation adopted, 2019
WL 5391376 (M.D. Fla. Oct. 22, 2019) (holding that, pursuant to Heslop, plaintiff’s
APA claim should be dismissed for lack of subject matter jurisdiction when plaintiff
did not present any argument or legal authority that would support allowing both his
section 1421(c) and APA claims to proceed).
For these reasons, the Court finds that Plaintiff has failed to establish that the
Court has subject matter jurisdiction to review USCIS’s denial of his naturalization

applications, pursuant to the APA, when he simultaneously seeks section 1421(c)
review. Accordingly, Count II is due to be dismissed.
C. Section 1421(c) Review (Count III)

Lastly, Defendants argue that the Court should dismiss Plaintiff’s Amended
Complaint, pursuant to Rule 12(b)(6), because the Amended Complaint and the
supporting documentation establish, as a matter of law, that Plaintiff is not entitled to
section 1440 naturalization because he was not an active-duty military member during
the Persian Gulf Conflict. (Doc. 38 at 14–18.) Plaintiff argues that, as a matter of law,
he is entitled to naturalization under section 1440, pursuant to USCIS Policy Memo

PA-2021-24, because he enlisted during the Persian Gulf Conflict. (Doc. 43 at 7–9.)
Plaintiff further argues that the Court should equitably grant him naturalization “in
the interest of justice considering his honorable service which caused him to be
stateless, the Marines’ affirmative misconduct. And the purpose implicit in the relevant
legislation and Policy Alert.” (Doc. 38 ¶ 18.)

As a threshold matter, the Court notes that when Plaintiff amended his
Complaint (Doc. 1), the Second Amended Complaint (Doc. 38) did not contain any
of the exhibits included with the original complaint. (Compare Doc. 1-2 with Doc. 38.)
As such, Plaintiff’s Official Military Personnel File (OMPF), Form N-400
applications, and USCIS denial letters are not before the Court for its de novo section
1421(c) review. See Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215
(11th Cir. 2006) (“An amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the pleader’s
averments against his adversary.” (internal citation and quotations omitted).)
Therefore, the Court will allow Plaintiff 14 days from the date of this Order to file an
amended complaint as to Count III only. Thereafter, Defendant will have 14 days to
file a renewed motion to dismiss as to Count III only.
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED that Defendants’
Motion to Dismiss (Doc. 39) is GRANTED IN PART and DENIED IN PART as
follows:
1. Counts I and II are DISMISSED.
2. Plaintiff shall have through August 20, 2024, to file an amended complaint
as to Count III only. Thereafter, Defendants shall have through September
3, 2024, to file a renewed motion to dismiss as to Count III only.
3. Otherwise, the Motion is DENIED.
DONE and ORDERED in Orlando, Florida on August 6, 2024.

□□ KIDD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642587. Public record. Not legal advice.